IN THE MATTER OF ARIEL J. STRAUSS.
Heard: January 24, 2018.
filed in the Supreme Judicial Court for the county of Suffolk
on January 20, 2016. The case was heard by Duffly, J.
Terrence D. Pricher, Assistant Bar Counsel.
Jeffrey D. WooIf for Board of Bar Overseers.
F. Maffei for the respondent.
Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
consider in this case the information filed by the Board of
Bar Overseers (board) that an attorney intentionally misused
a client's funds with temporary deprivation resulting,
and its recommendation as to the appropriate level of
discipline to be imposed. A single justice of this court
suspended Ariel J. Strauss (respondent) from the practice of
law for six months, and the board and bar counsel
appealed. For the reasons that follow, we reverse
the order of term suspension and, accepting the board's
recommendation, order an indefinite suspension.
August 25, 2014, bar counsel filed a two-count petition for
discipline against the respondent. Count one alleged that
between June 1, 2012, and September 30, 2013, the respondent
failed to properly maintain a check register for his client
trust account, and failed to perform a reconciliation of the
account periodically. The respondent did not dispute the
underlying facts as to count one, and a hearing committee of
the board (committee) agreed that the conduct violated Mass.
R. Prof. C. 1.15 (f) (1) (B) and (E), as appearing in 440
Mass. 1338 (2004).
second count involved the respondent's conduct in
connection with the settlement of a client's personal
injury claim. The committee found that the respondent (1)
failed to safeguard the client's funds in a trust
account, in violation of Mass. R. Prof. C. 1.15 (b) (1), as
appearing in 440 Mass. 1338 (2004); (2) failed to pay the
client the proceeds of her settlement promptly, in violation
of Mass. R. Prof. C. 1.15 (c), as appearing in 440 Mass. 1338
(2004); (3) failed to provide the client with notice of
withdrawal of his fee, the amount of the fee, an itemized
bill for services rendered, and a balance of the client's
funds left in the account, in violation of Mass. R. Prof. C.
1.15 (d), as appearing in 440 Mass. 1338 (2004); (4)
authorized distributions that caused a negative balance in
his client trust account, in violation of Mass. R. Prof. C.
1.15 (f) (1) (C), as appearing in 440 Mass. 1338 (2004); and
(5) engaged in conduct involving dishonesty, fraud, deceit,
or misrepresentation, in violation of Mass. R. Prof. C. 8.4
(c) and (h), 426 Mass. 1429 (1998).
committee determined that the respondent's misconduct
included a "[k]nowing misuse of one client's funds
for the benefit of another, " and recommended the
respondent be indefinitely suspended from the practice of
law. The board adopted the committee's findings and
recommendation, and an information and record of proceedings
was filed in the county court. After a hearing, the single
justice issued an order imposing a six-month suspension.
is no dispute that the respondent violated multiple rules of
professional conduct relating to the appropriate use and
maintenance of client trust accounts. The disciplinary
proceedings therefore focused on the allegation that was in
dispute and carried the most substantial sanction: whether
the respondent intentionally misused client funds, with
temporary deprivation resulting. Our review of the factual
findings concerning this allegation is limited. We uphold the
subsidiary facts found by the committee and adopted by the
board "if supported by substantial evidence, upon
consideration of the record, or such portions as may be cited
by the parties." S.J.C. Rule 4:01, § 8 (6), as
appearing in 453 Mass. 1310 (2009). "While we review the
entire record and consider whatever detracts from the weight
of the board's conclusion, as long as there is
substantial evidence, we do not disturb the board's
finding, even if we would have come to a different conclusion
if considering the matter do novo." Matter of
Segal, 430 Mass. 359, 364 (1999). See id., quoting G. L.
c. 3OA, § 1 ("'Substantial evidence' means
such evidence as a reasonable mind ...